Mount v. . Lyon

Allen, J. There was a conflict of evidence upon the allegation of the defendants that the plaintiff had waived the performance of the contract by requesting the defendants not to deliver more brick under it, and the referee has found that issue against the defendants. The contract was entire and indivisible for the delivery of a given quantity of brick, at a place specified, and within a limited time, to wit, within three months from the making of the agreement. The delivery of the entire quantity was a condition precedent to the right of the seller to demand payment for any part. Ho time of payment being fixed by the contract, the law makes the price payable upon the delivery of all the brick, and not before. (Baker v. Higgins, 21 N. Y., 397; Husted v. Craig, 36 id., 221.) The fact, therefore, that the plaintiff had not paid for those delivered prior to October, when the defendants discontinued the deliv *554 ery under the contract, does not excuse the delivery of the residue. The plaintiff was not in default, and the defendants had no legal claim for payment for any part until the whole should be delivered. The referee has found that the plaintiff fully performed his contract; that is, he was ready and willing to perform it by receiving and paying for the brick when they should be delivered during the time limited for that purpose. He has also found that the defendants having delivered a part of the brick, refused to deliver the balance. The defendants did not deliver the brick within the three months given for that purpose, and on being requested after that time to do so, did not comply with the request, and in defence of this action alléged a waiver of performance by the plaintiff. The evidence justified the finding by the referee of the refusal to perform by the defendants. It was not necessary as a condition precedent to a right of action for a breach of the contract that the plaintiff should make a formal demand of the brick and tender the pay therefor at the place of delivi ery. It is enough that he was ready and willing to receive the brick and pay for them on delivery. It is enough that the plaintiff was willing to accept and pay. (Coonley v. Anderson, 1 Hill, 519; Vail v. Rice, 1 Seld., 155; Hilliard on Sales, 507; Bronson v. Wiman, 4 Seld., 182.) It was not necessary that the plaintiff should have had during the whole of the three months, or on any day during that time, a sum of money in hand sufficient to pay for the whole quantity of brick- called for by the contract. It was sufficient that he had the means and resources at his command which would have enabled him to pay had the brick been delivered. (Bronson v. Wiman, supra.) The only question propounded to the plaintiff on his cross-examination as a witness, which was of any materiality even on a cross-examination, which was excluded, was, whether, had the brick been delivered within the three months stipulated in the contract, he could have paid for them on delivery. The question, although the objection to it was *555 sustained by the referee, was immediately fully answered, and the ability and the means and resources of the party fully stated and explained in answer to questions put by the defendants’ counsel. The same remark applies to all the questions put on behalf of the defendants to the plaintiff as a witness. They were all well and satisfactorily answered in the course of the examination. If there was error in the exclusion of evidence, it was cured by the subsequent reception of the same evidence in the course of the examination of the same witness. The judgment should be affirmed. All concur, except Peokham, J., dissenting. Judgment affirmed.